Is it Constitutional to Prosecute Those Who Mail Cow Manure?

My attempt at answering this age-old legal question is prompted by this story about a pair of feuding Iowa couples. Here is the report:

A southeast Iowa couple who were sent cow manure in the mail have sued the woman who acknowledges that she paid to have the poop sent.

The Hawk Eye reports that Mary Eipert and Steven Rowland want a judge to order Kimberly Capdevila and her husband, Carlos, to stop their dog from barking all day and night. The lawsuit filed Monday seeks compensatory and monetary damages for the barking and for what the lawsuit says is harassment by the Capdevilas.

The two couples are neighbors who have been squabbling over the barking dog. Fifty-one-year-old Kimberly Capdevila has said she had the manure sent as a practical joke. She has pleaded not guilty to a misdemeanor charge of harassment. She’s due back in court on April 7 for pretrial conference.

In this post I will briefly discuss the aspects of the Rowlands' civil claim, but then move on to discuss the criminal side of this story. I will look into the crime that Kimberly Capdevila has most likely been charged with, whether the prosecution has a strong case, and whether prosecuting Capdevila under this law is constitutional.

The Rowlands' Civil Claim

I am not sure whether the Rowlands have a very good chance of succeeding in their lawsuit against the Capdevilas. The Rowlands will likely argue that they are entitled to damages under an intentional infliction of emotional distress theory. But while Kimberly Capdevila may have admitted to mailing the cow manure, the Rowlands still need to establish that the act of mailing the manure was extreme and outrageous conduct. Certainly the act of mailing poop to another is not neighborly. But whether it rises to the level of extreme and outrageous conduct may be up for debate.

Iowa's Criminal Harassment Law

Aside from the civil case, the report notes that Kimberly Capdevila has been charged with criminal harassment as a result of her conduct. I suspect that she has been charged with criminal harassment under Iowa Code 708.7, which states, in part:

1. a. A person commits harassment when, with intent to intimidate, annoy, or alarm another person, the person does any of the following: 

(1) Communicates with another by telephone, telegraph, writing, or via electronic communication without legitimate purpose and in a manner likely to cause the other person annoyance or harm. 

(2) Places a simulated explosive or simulated incendiary device in or near a building, vehicle, airplane, railroad engine or railroad car, or boat occupied by another person. 

(3) Orders merchandise or services in the name of another, or to be delivered to another, without the other person's knowledge or consent. 

(4) Reports or causes to be reported false information to a law enforcement authority implicating another in some criminal activity, knowing that the information is false, or reports the alleged occurrence of a criminal act, knowing the act did not occur. 

b. A person commits harassment when the person, purposefully and without legitimate purpose, has personal contact with another person, with the intent to threaten, intimidate, or alarm that other person. As used in this section, unless the context otherwise requires, "personal contact" means an encounter in which two or more people are in visual or physical proximity to each other. "Personal contact" does not require a physical touching or oral communication, although it may include these types of contacts.

The Strength of the Prosecution's Case

Given the facts of the case that have been reported, I suspect that the prosecutor has charged Capdevila with violating subsections 708.7(a)(1) and/or 708.7(a)(3) of the harassment law. With the limited facts that are available, I think that the prosecution has the strongest case under 708.7(a)(3), which prohibits the shipping of merchandise to another person without that person's knowledge or consent with the intent to intimidate, annoy, or alarm that other person. 708.7(a)(1) is a possible charge, but it is not clear whether any writing was involved. Moreover, the sending of the cow manure through a third party may complicate the analysis.

Capdevila may respond against both counts by arguing that she did not send the manure to "intimidate, annoy, or alarm" her neighbors. Indeed, this report from KIMT suggests that she denies having such ill-will and only meant to send the cow poop as a "practical joke."

It is unclear whether Capdevila's response would be sufficient to overcome the charges against her. While Capdevila may not have intended to intimidate or alarm the Rowlands, she may have still intended to "annoy" them -- even if she was playing a practical joke.

Whether Iowa's Criminal Harassment Law is Constitutional

This is where the constitutional dimension of the case becomes apparent. Iowa's harassment law prohibits communications or mailed merchandise that is sent with the intent to "annoy" another person. I think that Capdevila has strong arguments that the "annoy" language is unconstitutionally overbroad as and vague.

Overbreadth

If a law is worded in such a way that it prohibits protected, as well as unprotected, speech, a defendant may be able to avoid a conviction under the law by arguing that the law is overly broad. While some speech that alarms, intimidates, and annoys others may be unprotected (such as true threats and fighting words) a great deal of annoying speech does not fall into these categories of unprotected speech. It therefore seems that Iowa's harassment law prohibits a great deal of protected speech and that Capdevila has a strong First Amendment claim that the law is overbroad.

Void for Vagueness

A law may be void for vagueness if it is unclear what conduct the law prohibits. A criminal law that is sufficiently vague gives prosecutors the discretion to arbitrarily charge some people, but not others, with violating the law. Courts hold that these vague laws are void because the potential for such arbitrary enforcement violates due process. Capdevila may argue that Iowa Code 708.7 is a vague law because the term "annoy" is undefined, and, more importantly, may vary in definition depending on the people affected or targeted by the offending conduct. Such a broad, varying, and ill-defined term may be deemed unconstitutionally vague.

Prior Case Law

It is worth noting that the cases I have found that discuss Iowa Code 708.7 have not addressed the overbreadth and vagueness questions the law raises. In State v. Fratzke, the Iowa Supreme Court overturned a conviction under this statute, but reached its holding on the grounds that the defendant's conduct of sending an angry letter to a police officer served a legitimate purpose. Since the prosecution could not prove all elements of the crime, the Court reserved judgment on the defendant's constitutional challenges to the law. In State v. Button, the Iowa Supreme Court upheld a conviction under section 708.7, but only did so on the grounds that the defendant's conduct was an unprotected true threat. The defendant either failed to raise overbreadth and vagueness arguments, or the Court simply left those issues unmentioned.

Commentary and Context

Broadly worded statutes like this have not gone unnoticed. Eugene Volokh notes that laws like these "prohibit a considerable amount of conduct, much of which would be constitutionally protected." In 2013, UCLA Law School's Supreme Court Clinic filed a petition for certiorari in Dugan v. Montana, arguing that the Supreme Court should consider whether laws that prohibit speech made with the specific intent to "annoy" or "offend" the listener are void for vagueness. While that petition was ultimately denied, the Iowa Supreme Court has yet to squarely address the issue. Because the Iowa Supreme Court receives far fewer petitions for review than the United States Supreme Court, I would expect that a petition to the Iowa Supreme Court would have a greater chance of being reviewed than a petition to the United States Supreme Court.

Conclusion

If Capdevila ends up getting convicted for her cow manure mailing, I would not be surprised if she appeals. Hopefully, the Iowa Supreme Court would finally address some of the stronger constitutional objections to Iowa's harassment laws. I, for one, would not object to a case with such colorful facts working its way into Iowa's law of free speech.